A Mockery of Law

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Freedom
of men under government is to have a standing rule to live by,
common to every one of that society… and not to be subject to
the inconstant, uncertain, arbitrary will of another man.

~
John Locke, Second
Treatise on Civil Government

Florida
Judge Terry Lewis’s decision on Tuesday regarding the deadline for
Florida counties to hand in election results makes a mockery of
the rule of law. Mark Levin and David Limbaugh describe the ruling
in their National Review Online piece, “This
Shall Be Known as Hash
“: “Moreover, the judge ruled that the
Secretary of State ‘may’ ignore the late ballots, but she must not
do so in an ‘arbitrary or unreasonable’ manner.” Similar interpretations
of other laws would imply that prosecutors “may” try a killer for
murder, but must not do so “arbitrarily,” or that someone who steals
my TV may not be “unreasonably” required to give it back.

As
F.A. Hayek pointed out in The
Constitution of Liberty
, the characteristics of a law that
is compatible with freedom are that it is clear cut, general, and
requires minimal discretion on the part of administrators. Citizens
living under the rule of such laws have firm guidelines as to whether
they are permitted to undertake some activity. This clarity enables
them to freely make their own plans without the fear that what they
do will be declared illegal, at the whim of some official. Citizens
can understand what the legal consequences of their actions will
be. They know that if they kill someone and are caught, they will
go to prison.

Hayek’s
precepts are not the be-all and end-all of just law. I once saw
someone comment, “Hayek’s rules would not forbid a government from
declaring ‘Everyone should wear green shirts on Wednesday.’” (I’d
give this person credit, except that I can’t remember who said it.)
While this is true, they do forbid a government from saying, “No
one shall wear anything displeasing to the ruler.” This distinction
is not inconsequential. Under the first rule, citizens can still
plan their activities with a fair degree of certainty as to their
legal consequences. Under the second rule, no one knows which clothes
will pass muster. The citizens must make an effort to “please” their
ruler, who has ultimate discretion over their dress.

Hayek
understood that general and determinate rules can be treated, by
those subject to them, similarly to the laws of the physical universe.
While we may view a restriction on marijuana consumption as unwarranted,
we can, in effect, deal with the situation as if it were the case
that marijuana did not exist in our world. Such a law is not a road
to tyranny – unlike, for instance, a law that says, “If someone
is suspected of dealing in marijuana, we may seize his assets.”
Suspecting someone is a subjective judgment, and places citizens
at the whim of those in power. There is no clear way to defend oneself
against such a charge, and no guideline as to when one is “acting
suspiciously.”

It
is interesting to note that this distinction would retain its importance
even in an anarcho-capitalist society. While the owner of a large
leasehold would be free to create whatever laws he desired, in the
interest of making his land attractive to his tenants he would be
wise to follow Hayek’s guidelines.

Judge
Lewis’s admonition to Secretary of State Katherine Harris not to
be “arbitrary” in her rejection of late votes is the antithesis
of Hayekian law. The only non-arbitrary way to proceed is to simply
reject any vote counts arriving after five on Tuesday. When five
o’clock has passed is an issue that is free from personal bias,
and votes are clearly in before or after that time. A firm deadline,
picked in advance of an election, relieves officials from charges
of favoritism and allows the election to proceed in an unbiased
fashion. Chosen in advance, such a rule cannot be said to favor
one candidate or the other, as no one can know beforehand which
candidate might benefit from a different deadline.

However,
now that this deadline is no longer final, any decision by Harris
will be considered arbitrary, at least by whomever dislikes the
decision. What this ruling means, in fact, is that the election
of our next President may turn on the subjective judgment of those
who are asked to evaluate the various lawsuits following in the
wake of this bizarre ruling.

November
18, 2000

Gene
Callahan is a regular contributor to mises.org.

2000, Gene
Callahan

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